Argued January 5, 2015.
Civil action commenced in the Land Court Department on July 2, 2012.
A motion for partial summary judgment was heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Jeffrey T. Angley ( Robert K. Hopkins with him) for Fitchburg Capital, LLC.
Jeffrey B. Loeb for the plaintiff.
Thomas O. Moriarty, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief.
Philip F. Coppinger, for Ry-Co International, Ltd., amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[28 N.E.3d 418] Hines, J.
Under a 2006 amendment to the so-called " obsolete mortgage" statute, a mortgage [28 N.E.3d 419] becomes unenforceable after a certain number of years: a mortgage in which the term or maturity date is stated becomes unenforceable five years after the expiration of the term and a mortgage in which the term or maturity date is not stated becomes unenforceable thirty-five years after recording. G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6. The defendant Fitchburg Capital, LLC (Fitchburg), foreclosed on two mortgages at a time when both mortgages would be unenforceable under the amended statute if the five-year statute of limitations was applicable. In this appeal, we interpret the amended statute to determine whether a mortgage stating only the term or maturity date of the underlying debt is a " mortgage in which the term or maturity date of the mortgage is stated" under G. L. c. 260, § 33, and whether the retroactive application of § 33 to mortgages recorded before the effective date of the amendment is constitutional.
The plaintiff, Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through Certificates, Series 2004-R11 under the Pooling and Servicing Agreement dated as of December 1, 2004 (Deutsche Bank), filed a motion for partial summary judgment seeking a declaration that the mortgages are discharged under the obsolete mortgage statute and the foreclosure auction conducted on the property securing those mortgages is null and void. In a well-reasoned opinion, a Land Court judge granted partial summary
judgment for Deutsche Bank, concluding that reference in the mortgages to the term of the underlying debt was sufficient to state the " term or maturity date of the mortgage" ; that the mortgages became obsolete pursuant to G. L. c. 260, § 33; and, therefore, that the foreclosure sale conducted by Fitchburg was null and void. The judge rejected Fitchburg's constitutional challenge to the statute. We transferred Fitchburg's appeal to this court on our own motion and now affirm.
The following facts, viewed in the light most favorable to the nonmoving party, are drawn from the summary judgment record. On or about April 30, 2012, Fitchburg conducted a foreclosure auction purporting to sell a property located at 11 Nutting Street, Fitchburg (property). Lee Bourque, a defendant, held record title to the property at all relevant times.
At the time of the purported foreclosure sale, Fitchburg held two mortgages secured by the property: (1) a mortgage dated April 13, 1999, from Lee Bourque to John Christiano, recorded May 14, 1999 [28 N.E.3d 420] (Christiano mortgage);  and (2) a mortgage dated December 16, 2002, from Lee Bourque to Bourque Development Corp., recorded December 18, 2002 (BDC mortgage). There is no evidence that any party recorded an extension for either ...